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Jared Felkins: Just when you thought it was OK to ban a book...

It was possibly the most far-reaching decision made by government in Wilson County in more than a decade, but not in a good way.

May 18, 2014

“The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.”

— Anthony Kennedy

It was possibly the most far-reaching decision made by government in Wilson County in more than a decade, but not in a good way.

When Wilson County Board of Education member Wayne McNeese made the motion to ban the book, “The Curious Incident of the Dog in the Night-Time,” from the freshman reading list, and it was approved by a 3-1 vote, it may have violated more than just one board policy. By reversing the decision without a vote, it may have violated state law. All of this was reported last Saturday in The Democrat.

The mystery novel by Mark Haddon is about an autistic teenager investigating the death of his neighbor’s dog.

But there’s both a second board policy, as well as federal law, in question with the decision. I told you it was far reaching.

Let’s start with what we already know might have happened here.

Interim Director of Schools Mary Ann Sparks said the decision was made to return the book to the reading list upon advice from county attorney Mike Jennings concerning a board policy that was possibly violated by banning the book.

The policy said, “The board will seek to provide a wide range of instructional materials on all levels of difficulty, with diversity of appeal and the presentation of different points of view and will provide procedures for review and reconsideration of allegedly inappropriate instructional materials.”

The policy further said, “The board supports principles of intellectual freedom inherent in the First Amendment of the Constitution of the United States and expressed in the Library Bill of Rights of the American Library Association.

“Because opinions differ, there may be questions concerning some instructional and library materials despite the quality of the selection process. If a complaint is made, it should be made to the director of schools or the appropriate instructional supervisor.”

Sparks said Friday she advised school administrators Thursday to put the book back on the reading list and return them to students. That action came after the books were taken away from students the day before when the board’s vote was set in motion.

“Because there is a policy and the board didn’t follow the policy, they are not following through with that so they can review the policy when they meet again in June,” Sparks said. “The books have been returned to the students, and they were not removed from the library shelves. It shouldn’t have been implemented because it violated a board policy. [Jennings] said we should follow our policy before implementing any change, and we are trying to do that.”

Sparks said any further discussion would be considered when the board meets again June 2.

Elisha Hodge, open records counsel with the state comptroller’s office, said the board may be in violation of the state Open Meetings Act based on information she received.

“To the extent that the board made a decision in a public meeting, they have to [reverse] that in an adequately noticed public meeting,” Hodge said. “I think that if the court were to look at the official action of the board, it would say the decision to take the book off the required reading list still stands.”

Hodge said the decision to ban the book from the reading list would at least stand until the board votes otherwise.

“The minutes of the meeting, based on the information I have, would reflect a decision was made to take the book off the required reading list,” Hodge said. “That decision would stand because the board hasn’t had an adequately noticed public meeting to vote otherwise.”

So there’s possibly a board policy broken here, and there might be state law broken by reversing the vote without meeting to vote to reverse the decision. Confused yet?

But after a little more digging, there may be another board policy that was violated by the board voting in the first place.

Policy 1.403 says, “For a regular board meeting, the agenda (which shall include the consent agenda), together with supporting materials, shall be distributed to board members at least five days prior to the scheduled date of the meeting.

“The agenda shall be available for public inspection and/or distribution when it is distributed to the board members. At the beginning of each meeting, the board shall, by a majority vote, approve the agenda for the meeting, which may involve the addition to or deletion of items previously included on the agenda. The board, however, shall not revise board policies or adopt new ones, unless such action has been scheduled.”

Since the book ban was added as new business to the agenda, the board may have broken yet another policy.

But there’s an even bigger issue here, and that’s the possible violation of federal law. In Island Trees School District v. Pico, the U.S. Supreme Court concluded in 1982 the First Amendment limits the power of local school boards to remove library books from junior high schools and high schools.

Justice William J. Brennan Jr. concluded the plurality opinion with a discussion of the extent of the school board’s authority to remove books from the school library.

“As noted earlier, nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools,” Brennan said in his opinion. “Because we are concerned in this case with the suppression of ideas, our holding today affects only the discretion to remove books. In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.’ Such purposes stand inescapably condemned by our precedents.”

So there’s local, state and federal laws that may have been violated, but no one will know for sure unless it’s heard in court.

One thing’s for sure. Sparks said it best when she said, “Through the years, different books have come up as being offensive to some, or maybe even the majority, and some of those books are now classics. I can’t tell you that I approve of them, but I will say that the option to read them, I feel as an educator should be there.”

I guess the next chapter will be heard when the board meets again June 2. There certainly are a lot of questions that deserve to be answered.